Alh. Abubakar Baban Ali V. Idi Buba Julde (2002)

LawGlobal-Hub Lead Judgment Report

T. MUHAMMAD, J.C.A.

The case was sent by the High Court of Jalingo, Taraba State for a retrial by the Grade I Area Court sitting at Jalingo. (Trial Court). The complaint of the Plaintiff before the trial court was for the recovery of a Fish Pond (Gwahir Fish Pond) situate in Mutum Biyu district and for an ejection of the defendant. It was alleged by the Plaintiff that the Fish Pond was entrusted to the Defendant’s father by Plaintiff’s father from whom he (Plaintiff) inherited the Pond. The Defendant responded:-

“I heard. The water is one; it is call Gwaliw, but it forms into 3 (i) is call Gwalir karama which is also known as kep in wurbo language. (2) is call Gwalir Manji it extended to Tunga Sale, that is our own. Gwalir Babba (kep) is for .Toda Bappa Sanda: Brother of the plaintiff. While Gwalir Manji is for Muhammadu Gugara. Our elders are around and they know who is who.”

The Plaintiff called four witnesses and tendered a document in evidence.

The Defendant also called four witnesses. At the end of the trial, the trial court confirmed to each i.e. the plaintiff, the defendant and one another the side of the Pond in his possession. The trial court did not grant an order for ejection against the defendant.

Dissatisfied, the Plaintiff appealed to the Upper Area Court Jalingo (UAC). The Upper Area Court, after reviewing the case presented at the trial court, set aside the trial court’s Judgment and confirmed ownership of the whole Fishing Pond to the Plaintiff/Appellant. Defendant/Respondent appealed to the Sharia court of Appeal Jalingo (Lower Court).

The Lower Court set aside the decisions of the trial and the Upper Area Courts and ordered for a retrial. It is from there that the Plaintiff as Appellant filed his appeal to this court.

Parties filed and exchanged briefs of argument. On the hearing date of the appeal each counsel for the respective parties adopted and relied on the brief he filed. Learned counsel for the Appellant formulated the following 3 issues:-

“(i) Whether the Sharia Court of Appeal holden in Jalingo, Taraba State had jurisdiction to determine this appeal filed before it. (This cover Ground 1 of the Grounds of Appeal).

(ii) Whether the appeal before the Sharia Court of Appeal Jalingo, filed on the 1st day of November, 1996 against the decision of Upper Area Court, Jalingo dated the 17th day of August, 1995 was competent. (This cover ground 2 of the Grounds Appeal).

(iii) Whether in the circumstances of this matter, it was justifiable in law for the sharia Court of Appeal holden in Jalingo to order retrial as it did. (This, cover Ground 3 of the Grounds of Appeal).”

Learned counsel for the Respondent adopted the three issues formulated by the Appellant.

In making his submissions on issue No. (i) Learned counsel for the Appellant hammered on the point that the Lower court lacked jurisdiction to entertain the matter on appeal before it as its jurisdiction was limited by section 242 of the 1979 Constitution of the Federation. The claim of Appellant, he contended, did not fall within the jurisdiction of the Lower Court. He submitted further that it is the Plaintiff’s claim before the trial court that determines whether or not the court has jurisdiction over any matter. He cited the case of ALHAJI INUWA BABA V. HAJIYA GAMBO BABA (1991) 9 NWLR (Pt.214) 248 at 249. Argued further for the Appellant is that the mere fact that the Respondent claimed to have inherited the Fish Pond from his late father is irrelevant to enable the matter become that of Islamic personal law for the purpose of falling within the ambit of section 242 of the 1979 constitution. It was argued further that even with amendment of section 242 of the 1979 Constitution by the Constitution (Suspension and Modification) Amendment Decree No.26 of 1986 which aimed at extending the jurisdiction of the Sharia Court of Appeal did not serve the purpose for which it was intended. The jurisdiction of the Sharia Court of Appeal remained as provided under section 242 (a) (b) and (d) of the 1979 Constitution. He relied on the case of ABUJA V. BIZI (1989) 5 NWLR (Pt.119) 120 at 122. Learned Counsel for the Appellant urged us to hold that the Sharia Court of Appeal had no jurisdiction on the matter before it and any decision arrived at by the Sharia Court amounted to a nullity.

In his submission on the issue, learned counsel for the Respondent conceded that the Sharia Court of Appeal had no jurisdiction on the matter before it. He argued further that going by the nature of the claim before the Trial Upper Area Court one cannot but say it relates to dispute as to ownership of fishing ponds”. The Sharia Court ought to have transferred the appeal to the High Court, Appeal Division. He urged us to hold that the Lower Court heard and determined the appeal without jurisdiction and the decision should be declared a nullity as it contravened section 242 (2) of the 1979 Constitution (Section 277 (2) of the 1999 Constitution).